By KIP SULLIVAN(28)
On April 17, the Minnesota Supreme Court published an opinion holding that doctors who deny services to patients may be sued even if they did not have a doctor-patient relationship with the patient.The decisiondrew expressions of surprise and consternation from observers inside Minnesota. Many malpractice experts had expected the court to conclude that patients cannot sue doctors unless the doctor had actually treated the patient. But in this case,Warren v. Dinter, the court held that a hospitalist  who refuses to admit a patient to the hospital may be sued for causing the death of the patient even though the hospitalist never laid eyes on the patient.
The court sent the case back to the district court for trial.
The defendants listed in this case are both the hospitalist, Dr. Richard Dinter, and the Fairview Range Medical Center in Hibbing, a small town on Minnesota’s Iron Range. The plaintiff is Justin Warren, the son of Susan Warren, a woman who died at the age of 54 one day after being denied admission to the Fairview hospital.
This is an odd case, and a complex case. It raises at least three questions worthy of extensive public debate. In the next section I will recite the basic facts of this story as they were reported by the opinions of the Minnesota Supreme Court and theCourt of Appeals. In the section after that, I will discuss the three issues.
What we know about the death of the plaintiff’s mother
On the morning of Friday, August 8, 2014, Susan Warren visited Essentia Health Clinic in Hibbing. The clinic is part of the 15-hospital-75-clinic chain calledEssentia Health that extends over much of northern Minnesota and Wisconsin. The clinic is about ablock away from the Fairview Range Medical Center, the only hospital in Hibbing, one of 12 owned byFairview Health Servicesa hospital-clinic chain that sprawls over the eastern half of Minnesota.
Warren was suffering from fever, chills and stomach pain. A nurse practitioner at the Essentia clinic, Sherry Simon, drew some blood from Warren and sent it to a lab. That afternoon the lab reported that “Warren had unusually high levels of white blood cells, as well as other abnormalities,” as the court put it (p. 3). (Unless I note otherwise, “the court” refers to the Supreme Court, not the Court of Appeals.) Simon concluded, naturally enough, that Warren had an infection and needed to be hospitalized immediately. However, rather than send Warren straight to the ER of the Fairview Range Medical Center, Simon called the hospital “to seek Warren’s admission.” (p. 3) Simon’s call was routed to Dr. Richard Dinter, one of three hospitalists on call that day.
After hearing Simon’s summary of Warren’s symptoms, Dr. Dinter declared her symptoms were due to “a diabetes that’s out of control” (as the Court of Appeals put it) and recommended that Simon send her home with some diabetes medication, and schedule a follow-up visit for next Monday, three days later. Upon hearing this strange diagnosis, Simon politely inquired whether it was accurate. “Simon says she asked whether diabetes could actually be the source of the elevated white-blood-cell count,” reported the court, “and that Dinter responded that it could. Simon says she asked this question because it was the first time someone had told her that out-of-control diabetes could cause a high white-cell count.” Rather than challenge Dinter’s flaky diagnosis, Simon asked him again to admit Warren. Dinter replied, “To what end?” (pp. 4-5) Simon got the message: Dinter had made up his mind he would not admit this patient, and he was not interested in further discussion.
Still concerned about Ms. Warren’s condition, Simon then spoke to Dr. Jan Baldwin, her “collaborating physician” at the Essentia clinic. Amazingly, Baldwin, who also did not examine Warren, agreed with Dinter – Warren was suffering from out-of-control diabetes. (Neither court opinion indicates whether Warren had been previously diagnosed with diabetes.) At that point, Simon relented. According to the court, “Simon then discussed the diabetes diagnosis with Warren, prescribed diabetes and pain medication, scheduled a follow-up appointment, and sent her patient home.” Warren died the next day, Saturday. Her son found her body in her home the following Monday. An autopsy revealed that the cause of death was “sepsis caused by an untreated staph infection.” (p. 5)
On March 7, 2016, Ms. Warren’s son Justin sued Dinter and the Fairview hospital for malpractice. At some point prior to that date, Justin Warren “sued Essentia Health for the alleged malpractice of its employees, Simon and Baldwin.” (p. 6) That case was settled out of court.
Dinter and Fairview argued to the trial court that Justin Warren could not sue Dr. Dinter and Fairview because Dinter was not in a physician-patient relationship with Ms. Warren at the time he refused to admit her. According to the defendants, Dinter had merely offered the nurse practitioner, Sherry Simon, a “curbside consult.” The trial court and the Court of Appeals agreed with that argument. The Supreme Court did not. By a 5-2 margin, it held that Dr. Dinter had made a medical decision even though he was not treating Ms. Warren, and the only question before the trial court should have been whether Dinter should have foreseen that his medical decision could harm Ms. Warren. The court concluded that Justin Warren did not have to prove that his mother was in a doctor-patient relationship with Dinter in order to proceed to trial.
This was unquestionably the correct decision. If the court had ruled against Justin Warren, that would have meant hospital staff can refuse to admit patients in dire need of inpatient care and never be held accountable in a court of law. Such a decision would have rested on an irrational and infuriating premise: That hospitalists can slam the hospital door on sick patients they have never examined, and when they are sued they can claim, “I never laid eyes on that patient. How dare you attempt to hold me accountable for making a life-or-death decision about a patient I never examined!”
But that was precisely Dr. Dinter’s and Fairview’s defense in this case.
These facts raise three questions that I will discuss in more detail below:
(1) Who authorized Fairview hospitalists to deny admission to patients they haven’t examined?
(2) Since when is diabetes a reasonable explanation of fever, chills and an elevated white-blood-cell count?
(3) What role did financial incentives and micromanagement of doctors play in inducing Drs. Dinter and Baldwin to make such a serious error?
The first two questions are probably obvious even to non-experts. The third question is not, but it may be the most important question of the three. These questions were not before the Supreme Court, but they will, or should be, raised in the district court if this case goes to trial. I hope this case does go to trial; the public deserves answers to all three questions. If Fairview settles before trial, the public may never learn the answers to these questions.
Question 1: Who authorized Fairview hospitalists to deny admission to patients they haven’t examined?
The court shed no light on this question. It offered only this non sequitur: “Because Essentia did not have a hospital in Hibbing, it was standard practice for Simon and other Essentia healthcare professionals to seek hospitalization of their patients at the Fairview hospital.” (p. 4) Why is it helpful to tell us, “Because Essentia did not have a hospital in Hibbing….”? The court might as well have said, “Because Essentia begins with the letter ‘e’….” The court’s tortured non sequitur implies it has no idea why or when it became “standard practice” for doctors at the Hibbing hospital to deny admission of sick patients they haven’t seen. The lame non sequitur indicates the court is simply accepting Fairview’s fait accompli – its decision to authorize its hospitalists to slam the door on sick patients without examining them. The public deserves to know how such a toxic policy became “the standard” at Fairview.
As if that weren’t strange enough, it turns out the court is not alone in its passive acceptance of Fairview’s policy. The staff of the Essentia clinic also accept this “standard practice.” Consider this excerpt from the Court of Appeals’ opinion: “According to Dr. Baldwin, although she had admitting privileges at Fairview, her normal procedure was to have the Fairview hospitalist do admissions of her adult patients. Although she occasionally admitted her adult obstetrics patients directly, Dr. Baldwin stated that, for all other patients, if a Fairview hospitalist declined to admit a patient she thought should be hospitalized, she would either send the patient to Fairview’s emergency room or to a different hospital.” 
Again, we are reading tortured language. What sense does it make to say Dr. Baldwin has admitting privileges when she rarely “admits patients directly” and instead has to play captain-may-I with Fairview’s hospitalists and, if she doesn’t win the debate, she has to send patients to the ER or to “another hospital” (the nearest hospitals are 26 miles away in Virginia and 34 miles away in Grand Rapids)? What possible rationale is there for shipping sick Hibbing residents out of town when a perfectly good hospital exists in Hibbing? 
Hold onto your hats, we are still not at the bottom of the rabbit hole. It gets stranger still. This notion that it’s ok for hospitalists to refuse to admit dying patients they have never examined was reinforced by testimony by a hospitalist from Hennepin County Medical Center (HCMC), Dr. Meghan Walsh. Dr. Walsh was called as an expert for the defense. She testified that Dr. Dinter’s behavior was “consistent with the standard of care for a hospitalist.” Then, for good measure, she “opined that, even if Warren had been admitted to the hospital on the day Simon called Dinter, it is unlikely and doubtful that Warren would have survived her infection.” (p. 7)
Is that not Orwellian rhetoric? Let me repeat it: Ms. Warren was so sick she would probably die soon, but Dr. Dinter’s denial of hospitalization was “consistent with the standard of care for a hospitalist.” Is it just me, or is this “standard” inhumane? Shouldn’t the public have some say in whether this “standard” should prevail at any hospital?
Question 2: Since when is diabetes a reasonable explanation of fever, chills and an elevated white-cell count?
Possibly the single strangest aspect of this strange case was Dr. Dinter’s diabetes diagnosis. I am not a doctor, but based on my conversations with four retired primary care doctors, I am positive that one of the following statements is true: (1) diabetes never causes the symptoms Warren had; (2) diabetes causes those symptoms so rarely no doctor should list diabetes as the most likely explanation for them. One of the doctors I spoke to debunked Dinter’s judgment with this analogy: He said diagnosing “diabetes out of control” as the most likely cause of Warren’s symptoms would be like “you coming to see me with pain in your foot, and I diagnose a migraine headache.” 
Question 3: Did financial incentives play a role?
If Dinter had been the only physician to sign off on the erroneous diabetes diagnosis, and if Dinter were the only doctor to express the opinion that it’s ok for hospitalists to deny admission to patients without seeing them, we might seriously entertain the “bad apple” thesis, i.e., that one doctor, and one doctor only, should be held accountable for Susan Warren’s death. But two other doctors – Baldwin at Essentia, and Walsh at HCMC – approved of the erroneous diabetes diagnosis. Drs. Baldwin and Walsh, and the executives at the Hibbing hospital (and presumably of Fairview Health Services), also accepted Fairview’s practice of denying admission to patients that they haven’t examined. This suggests that the malpractice at issue here was caused at least in part by systemic factors, not just a defect in Dr. Dinter.
What might those systemic factors be? The most plausible is the set of financial incentives to which hospitals are exposed these days. Those incentives changed dramatically during the 1980s and 1990s with the spread of HMOs, in the 2000s with the spread of “pay for performance” (P4P) schemes, and in the 2010s with the spread of the “value-based payment” (VBP) programs unleashed by the 2010 Affordable Care Act. These health policy fads – HMOs, P4P, and VBP – gave hospitals incentives to reduce hospital use.
Of the many forms VBP has taken, the most widespread is the “accountable care organization” (ACO). The ACO was one of several dozen VBP “reforms” authorized by the ACA that allegedly lower costs without harming patients. “An ideal ACO will focus on keeping patients from entering a hospitalandcost-effectively treating those that are admitted,” is howone expert puts it. ACOs, which are usually run by hospital-clinic chains, sign contracts with insurers (like Medicare and Blue Cross Blue Shield) that obligate them to share insurance risk. More than 1,000 have been established since 2010. Fairview and Essentia were among the earliest hospital-clinic chains to create ACOs. In fact, Fairview waspromoting ACOseven prior to 2010 .Essentia, “which is accredited as an Accountable Care Organization by the National Committee for Quality Assurance,” had established an ACO by at least 2013.  Thus, by August 8, 2014, the day Susan Warren visited the Essentia clinic, the incentives created by ACO contracts – incentives deliberately designed to induce doctors and hospital managers to reduce the use of medical services – were operating within both the Fairview and Essentia systems. 
Are we asking too much of judges and juries?
The facts as they have been reported to us by the Court of Appeals and the Minnesota Supreme Court suggest that Susan Warren’s death was caused at least in part by systemic factors that didn’t exist three or four decades ago – before hospitals and clinics were owned by gigantic chains, and before those chains were subjected to immense pressure from insurers to reduce admissions to hospitals and otherwise act like an HMO.
Given the omnipresence and power of these systemic factors, lawmakers, malpractice attorneys, and the public must learn to ask as a matter of course, Should doctors who work under these toxic influences be the only suspects when patients are harmed? If the answer is no, then we must ask, How do we identify the other “tortfeasors” (legalese for anyone who bears some responsibility for harm done to another)? Malpractice trials have limits. We can hope that Justin Warren’s attorney has already forced the Fairview chain to turn over copies of its contracts with the Hibbing hospital and its hospitalists, and that those contracts will reveal any financial incentives or other requirements that might have contributed to Dinter’s decision. But we can’t expect a judge or jury in a malpractice trial to assess the role of larger systemic factors such as ACOs, merger madness within the hospital industry, micromanagement of physicians, and limitations on where patients may seek medical care.
That job falls to the experts and policy-makers who promote evidence-free “reforms” like ACOs, “reforms” which in turn encourage consolidation, micromanagement of doctors, and more limitations on patient choice. Ultimately that job falls to all us as citizens. It is not enough to hope that injured plaintiffs can find attorneys willing to sue, and that judges and juries will do right by injured patients. We must also demand a thorough public debate about all health policy “reforms” that put patients at risk.
 A hospitalist is a doctor employed by a hospital to manage the care of inpatients.
 The Essentia nurse, Sherry Simon, apparently didn’t get the memo that it’s ok for doctors at the Hibbing hospital to deny admission to Essentia patients. She let slip during her testimony that she thought the “protocol” or expectation that Essentia employees must play captain-may-I with Fairview hospitalists was based on “politics,” not common sense. Here is a revealing sentence from the opinion of the two Supreme Court judges who dissented in Warren v. Dinter: “Simon testified, ‘My understanding of the politics—or maybe politics isn’t the right word—was that all admissions at that point went through the hospitalists.’” (p. D-6)
 A mere three decades ago, patients were admitted to hospitals by doctors who had “admitting privileges.” These doctors would call the admitting office and give whoever answered the phone information on the patient and what floor the patient should be sent to. The person on the other end of the phone was not authorized to second-guess the admitting physician.
 Four physicians I contacted confirmed what I thought I knew to be true – that diabetes does not cause fever and high white-blood-cell counts. Readers who would like to research this issue for themselves may want to begin by visiting the Mayo Clinic website (seethis pageon the causes of high white-blood-cell counts andthis oneon the causes of fever )
When I asked one of the doctors if it would make a difference in his diagnosis if he knew that Ms. Warren had been previously diagnosed with diabetes (the court did not say whether this had occurred), he said yes, but only because infections can be even more dangerous in diabetics. Infections,he said, can “tip diabetics into ketoacidosis,” which can be fatal. In other words, if Dr. Dinter had been informed by NP Simon that Ms. Warren was a diabetic, that would not be reason to think Ms. Warren’s infection was caused by diabetes, but it would be even more reason to hospitalize her immediately.
 One final question: Why didn’t Ms. Warren go to the ER at the Fairview hospital, just one block away from the Essentia clinic? She was obviously very sick when she went to the Essentia clinic. Why did she go there rather than the Fairview ER? Was she afraid of being billed for an unnecessary ER visit if the hospital refused to admit her? If she had that fear, where did it come from? Did her insurance require her to go first to an Essentia clinic or hospital and not one of the clinics or hospitals owned by Fairview? Whatever the reason, Ms. Warren’s decision to visit the clinic rather than the ER may have been fatal. If she had visited the hospital ER, the ER doctors would have had to examine her. They might have reached the same conclusion reached by Simon, the only person who actually laid eyes on Susan Warren on that fateful Friday.